13304 Federal Register / Vol. 89, No. 36 / Thursday, February 22, 2024 / Proposed Rules 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

V. Incorporation by Reference 

In this document, the EPA is 

proposing to include in a final EPA rule 

regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, the EPA is proposing to 

incorporate by reference the VADEQ 

regulation amending 9VAC5–20–204 to 

add a new sulfur dioxide nonattainment 

area and two other minor changes as 

discussed in section II of this document, 

‘‘Summary of SIP Revision and EPA 

Analysis.’’ The EPA has made, and will 

continue to make, these materials 

generally available through 

www.regulations.gov and at the EPA 

Region 3 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

The SIP is not approved to apply on 

any Indian reservation land as defined 

in 18 U.S.C. 1151 or in any other area 

where the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule amending the list of 

Virginia nonattainment areas to include 

a newly designated sulfur dioxide (SO2) 

nonattainment area does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The VADEQ did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. The EPA did not perform an 

EJ analysis and did not consider EJ in 

this action. Consideration of EJ is not 

required as part of this action, and there 

is no information in the record 

inconsistent with the stated goal of 

Executive Order 12898 of achieving 

environmental justice for people of 

color, low-income populations, and 

Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Adam Ortiz, 

Regional Administrator, Region III. 

[FR Doc. 2024–03616 Filed 2–21–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2020–0055; FRL–11687– 

01–R5] 

Air Plan Approval; Ohio; Withdrawal of 

Technical Amendment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to correct the 

November 19, 2020, removal of the Air 

Nuisance Rule (ANR) from the Ohio 

State Implementation Plan (SIP). This 

action is in response to a February 10, 

2023, decision by the United States 

Court of Appeals for the Sixth Circuit to 

remand without vacatur EPA’s removal 

of the ANR from the Ohio SIP. Because 

the Court did not vacate EPA’s removal 

of the ANR, the ANR is currently not in 

Ohio’s SIP. After reevaluating EPA’s 

November 19, 2020, rulemaking, as 

directed by the Court, EPA is proposing 

to determine that its November 2020 

final action was in error, and to correct 

that action by reinstating the ANR as 

part of the Ohio SIP. 

DATES: Comments must be received on 

or before March 25, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2020–0055 at https://

www.regulations.gov, or via email to 

arra.sarah@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 


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1The public comments are found in the 

rulemaking docket for EPA’s proposed and final 

action removing the ANR from the Ohio SIP. Docket 

ID: EPA–R05–OAR–2020–0055, available at https:// 

www.regulations.gov/docket/EPA-R05-OAR-2020- 

0055. 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Christos Panos, Attainment Planning 

and Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 353–8328, panos.christos@

epa.gov. The EPA Region 5 office is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

Federal holidays and facility closures 

due to COVID–19. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

A. Procedural History 

Until EPA’s November 2020 removal 

action, a version of the ANR had been 

part of the Ohio SIP since 1974. EPA 

approved Ohio rule AP–2–07, ‘‘Air 

pollution nuisances prohibited,’’ into 

the Ohio SIP on April 15, 1974 (39 FR 

13542). Subsequently, Ohio made minor 

changes to the rule and submitted the 

amended rule, renumbered as Ohio 

Administrative Code (OAC) 3745–15– 

07, as a SIP revision. EPA approved the 

amended rule into the SIP on August 13, 

1984 (49 FR 32182). OAC 3745–15–07 

prohibits the ‘‘emission or escape into 

the open air from any source or sources 

whatsoever, of smoke, ashes, dust, dirt, 

grime, acids, fumes, gases, vapors, 

odors, or any other substances or 

combinations of substances, in such 

manner or in such amounts as to 

endanger the health, safety or welfare of 

the public, or cause unreasonable injury 

or damage to property.’’ 

In a proposed rule published on 

March 23, 2020 (85 FR 16309), EPA 

proposed to conclude that it had erred 

in originally approving the ANR into 

Ohio’s SIP. In its justification, EPA 

noted that it had no information 

indicating that Ohio had relied on, or 

ever intended to rely on, the ANR for 

attainment or maintenance of any 

National Ambient Air Quality Standards 

(NAAQS). Further, in response to EPA’s 

inquiry, Ohio informed EPA that it had 

not relied on the ANR for the purposes 

of planning, nonattainment 

designations, redesignation requests, 

maintenance plans, or determination of 

nonattainment areas or their boundaries 

under the Clean Air Act (CAA). 

Therefore, in the final rule published on 

November 19, 2020 (85 FR 73636), EPA 

concluded it had erred by including the 

ANR in Ohio’s SIP and removed the 

ANR using the error-correction 

mechanism under the authority of 

section 110(k)(6) of the CAA, 42 U.S.C. 

7410(k)(6). 

On January 19, 2021, environmental 

groups and private citizens petitioned 

the Sixth Circuit for review of EPA’s 

November 19, 2020, removal of the ANR 

(Sierra Club v. EPA, No. 21–3057). In 

briefing this matter before the Court, 

EPA argued that Petitioners did not 

have standing to bring this challenge. 

See Brief for Respondents at 1, Sierra 

Club v. EPA, No. 21–3057 (6th Cir. Apr. 

25, 2022). However, in the event that the 

Court found Petitioners did have 

standing, EPA requested a voluntary 

remand of the final rule, which was 

granted by the Court on February 10, 

2023. EPA represented to the Court that 

such a remand would allow the Agency 

to consider: (1) whether the section 

110(k)(6) error-correction mechanism 

was the most appropriate vehicle for 

removing the ANR from Ohio’s SIP; and 

(2) whether EPA should have 

considered performing an ‘‘antibacksliding’’ analysis under section 193 

of the CAA, 42 U.S.C. 7515, concerning 

the removal of the nuisance rule from 

Ohio’s SIP. Id. at 23–24. In a declaration 

filed in the Sixth Circuit, EPA 

represented that, in the course of this 

reevaluation, it could supplement the 

administrative record with additional 

information and analysis, take and 

consider additional public comment, 

and provide additional explanation of 

its assessment of the challenged aspects 

of the final rule. See ‘‘Declaration in 

Support of Request for Voluntary 

Remand’’ at para. 9, Brief for 

Respondents, Sierra Club v. EPA, No. 

21–3057 (6th Cir. Apr. 25, 2022). EPA 

stated that, upon remand, it could also 

evaluate whether any aspects of the 

ANR could be included in the SIP if 

they met applicable requirements for the 

implementation, maintenance, and 

enforcement of the NAAQS. Id. EPA 

committed to completing its 

reevaluation within 12 months. Id. at 

para. 10. 

B. Public Comments on EPA’s Proposal 

To Remove the ANR 

During the public comment period for 

the March 23, 2020, proposed rule 

removing the ANR, EPA received 

comments presenting several opposing 

arguments.1 Commenters questioned 

whether EPA’s section 110(k)(6) errorcorrection action was an appropriate 

mechanism to remove the ANR from the 

Ohio SIP. See footnote 1, supra. The 

commenters asserted that EPA’s 

approval of the ANR as part of the SIP 

was not an error and that EPA’s use of 

error correction authority to remove the 

ANR from Ohio’s SIP was unlawful. Id. 

Commenters further asserted that EPA 

was required to adhere to the SIP 

revision process to remove the ANR 

from Ohio’s SIP, which would include 

providing a demonstration pursuant to 

section 193 of the CAA that no 

backsliding would result from this 

change. Id. 

Commenters also asserted that EPA 

had failed to consider the impact of 

eliminating the only available pathway 

for Ohio residents to enforce the ANR 

on air quality and enforcement in Ohio. 

Therefore, the commenters maintained, 

the removal of the ANR from the SIP 

prevented local governments and nongovernmental organizations, as well as 

affected Ohio communities, from 

directly enforcing the ANR where 

necessary to protect Ohioans’ health, 

welfare, and property. The commenters 

further contended that individual 

Ohioans (as well as local governments) 

had relied, and were relying at the time 

of the error correction rulemaking, on 

the nuisance provision for Federal 

enforcement citizen suits under the 

CAA, and that the continued availability 

of such citizen suits was important for 

achieving environmental justice in the 

context of highly localized emissions in 

low-income areas and communities of 

color. See footnote 1, supra. 

C. The Sixth Circuit Opinion 

In its decision remanding EPA’s 

removal of the ANR back to the Agency 

for further review, the Sixth Circuit 

cited several cases in which parties 

authorized to enforce Ohio’s SIP 

provisions could and did bring 

enforcement actions for violations of the 


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2See ‘‘Notice of additional information in Sierra 

Club, et al. v. United States Environmental 

Protection Agency, No. 21–3057,’’ Sierra Club, et al. 

v. EPA et al., No. 21–3057 (6th Cir. Oct. 18, 2022). 

ANR (prior to EPA removing the rule 

from Ohio’s SIP). E.g., Fisher v. PermaFix of Dayton, Inc. Np. 3:04–C–V–418, 

2006 WL 212076 (S.D. Ohio Jan. 27, 

2006); Sampson v. SunCoke Energy, No. 

1:17–cv–00658 (S.D. Ohio). Slip op. at 5. 

The Court also noted Petitioners’ past 

reliance on the ANR apart from actually 

bringing CAA litigation (i.e., filing 

notices of intent to sue under the CAA). 

Slip op. at 5. For support, the Court 

cited public comments opposing the 

proposed rulemaking that argued the 

ANR was an ‘‘important regulatory tool 

in achieving and maintaining the 

NAAQS,’’ and that its removal from the 

SIP ‘‘ignored the role of citizen suits in 

CAA enforcement.’’ Slip op. at 7. 

In addition, during the litigation in 

the Sixth Circuit, the state of Ohio 

submitted a letter to the Court 2

acknowledging that it had relied on the 

ANR as recently as July 2021, when it 

brought a lawsuit against an iron and 

steel manufacturing facility for violating 

the ANR and lead NAAQS based on 

excess lead emissions. See State of Ohio 

v. Republic Steel, Case No. 

2021VC00949 (Stark County, Ohio July 

2, 2021). While the Court acknowledged 

EPA’s statement in its proposal that it 

had found ‘‘no information’’ indicating 

the State had relied or intended to rely 

on the ANR for attainment or 

maintenance of the NAAQS, the Court 

noted that there was nothing in EPA’s 

proposal or EPA’s January 2020 email 

exchange with the Ohio EPA official 

that discussed whether the ANR had a 

role in NAAQS enforcement. Slip op. at 

6. 

D. Legal Authority for Proposed Action 

Section 110(k)(6) of the CAA 

authorizes EPA to revise a state’s SIP 

when it ‘‘determines that [its] action 

approving, disapproving, or 

promulgating any plan or plan revision 

(or part thereof) . . . was in error.’’ 

Once EPA has made the determination 

that it erred, it ‘‘may in the same 

manner as the approval, disapproval, or 

promulgation revise such action as 

appropriate without requiring any 

further submission from the State.’’ Ala. 

Envtl. Council v. EPA, 711 F.3d 1277, 

1286 (11th Cir. 2013). Section 110(k)(6) 

of the CAA has been interpreted by 

courts as a ‘‘broad provision [that] was 

enacted to provide the EPA with an 

avenue to correct its own erroneous 

actions and grant the EPA the discretion 

to decide when to act pursuant to the 

provision.’’ Miss. Comm’n on Envtl. 

Quality v. EPA, 790 F.3d 138, 150 (D.C. 

Cir. 2015). EPA can take action under 

section 110(k)(6) to correct an error only 

if the error existed at the time the SIP 

was originally approved. See Texas v. 

EPA, 726 F.3d 180, 204 (D.C. Cir. 2013) 

(Kavanaugh, J., dissenting). 

Additionally, EPA has inherent 

authority to reconsider, repeal, or revise 

past decisions to the extent permitted by 

law so long as the Agency provides a 

reasoned explanation. See FCC v. Fox 

Television Stations, Inc., 556 U.S. 502 

(2009) (an agency may revise its policy, 

but must demonstrate that the new 

policy is permissible under the statute 

and is supported by good reasons, 

taking into account the record of the 

previous rule). An agency’s authority to 

reconsider past decisions derives from 

its statutory authority to make those 

decisions in the first instance. See 

Trujillo v. General Electric Co., 621 F.2d 

1084, 1086 (10th Cir. 1980) 

(‘‘Administrative agencies have an 

inherent authority to reconsider their 

own decisions, since the power to 

decide in the first instance carries with 

it the power to reconsider.’’) (citing 

Albertson v. FCC, 182 F.2d 397, 399 

(D.C. Cir. 1950)). See 621 F.2d at 1088 

(‘‘The authority to reconsider may result 

in some instances, as it did here, in a 

totally new and different 

determination.’’). The CAA 

complements EPA’s inherent authority 

to reconsider prior rulemakings by 

providing the Agency with broad 

authority to prescribe regulations as 

necessary. 42 U.S.C. 7601(a); see also 

Emission Guidelines and Compliance 

Times for Municipal Solid Waste 

Landfills, 81 FR 59276, 59277–59278 

(August 29, 2016). 

Section 110(a)(1) of the CAA imposes 

an obligation upon states to submit SIPs 

that provide for the ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS within three 

years following the promulgation of that 

NAAQS. 42 U.S.C. 7410(a)(1). The 

importance of enforcement in the 

statutory scheme is evident in section 

110(a)(2), as the list of required SIP 

elements under 110(a)(2)(A) includes 

enforceable emission limitations and 

other control measures, means, or 

techniques as may be necessary or 

appropriate to meet the applicable 

requirements of the CAA. Section 

110(a)(2) ‘‘sets only a minimum 

standard that the States may exceed in 

their discretion.’’ Union Elec. Co. v. 

EPA, 427 U.S. 246, 260 (1976). The CAA 

provides that the Administrator must 

approve the proposed plan if it has been 

adopted after public notice and hearing 

and if it meets the specified criteria in 

section 110(a)(2). See also Train v. Nat. 

Res. Def. Council, Inc., 421 U.S. 60, 79 

(1975). In addition, section 116 of the 

CAA provides that States may adopt 

emission standards that are stricter than 

the NAAQS. See Union Electric at 263– 

64. 

Additionally, section 113 of the CAA 

establishes EPA’s Federal authority to 

enforce SIP provisions, and section 304 

of the CAA provides for citizen 

enforcement authority of the same. 42 

U.S.C. 7413, 7604. Thus, the CAA 

contemplates multiple mechanisms for 

enforcement of SIP provisions, and 

taken together with the requirement 

under section 110(a)(1) that SIPs 

provide for the ‘‘implementation, 

maintenance, and enforcement’’ of the 

NAAQS, 42 U.S.C. 7410(a)(1), a state 

provision that provides for enforcement 

of the NAAQS is appropriate for 

inclusion in a SIP. 

II. Reevaluation in Response to 

Remand 

EPA’s November 2020 removal of the 

ANR from Ohio’s SIP was based on a 

determination that the ANR’s original 

inclusion in the Ohio SIP was erroneous 

because the ANR had no nexus to the 

implementation, maintenance, or 

enforcement of the NAAQS. See 85 FR 

73636–73638. EPA has reviewed its 

November 2020 removal of the ANR 

from the Ohio SIP and reconsidered 

whether its determination that the ANR 

was approved in error was legally 

sufficient. Based on its reconsideration, 

EPA is proposing to conclude that its 

original determination was deficient for 

two reasons: (1) because EPA failed to 

adequately consider the ANR’s use in 

enforcement of the NAAQS, and (2) 

because EPA failed to conduct an antibacksliding analysis pursuant to section 

193 of the CAA. As such, EPA is 

proposing to use both its error 

correction authority under CAA section 

110(k)(6), and inherent reconsideration 

authority, to reverse its removal of the 

ANR and reinstate the provision back 

into the Ohio SIP. 

A. Enforcement of the ANR 

In response to the remand, EPA has 

carefully considered the cases cited by 

the Sixth Circuit indicating that the 

ANR had been used as a tool to enforce 

the NAAQS, many of which were also 

submitted to EPA during the public 

comment period for the proposed action 

to remove the ANR. Upon further 

review, EPA is proposing to determine 

that its November 2020 action failed to 

adequately consider the role the ANR 

plays in the enforcement of the NAAQS 

in Ohio. 

During the public comment period for 

the proposed action removing the ANR, 


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3Notably, in State of Ohio v. Republic Steel, Case 

No. 2021VC00949 (Stark County, Ohio July 2, 

2021), the State of Ohio sought to enforce the ANR 

based on lead emissions exceeding the NAAQS. See 

also footnote 2, supra. 

EPA failed to adequately consider 

comments about citizen suits relying on 

the ANR as a tool to enforce the 

NAAQS. See footnote 1, supra. See also 

Fisher v. Perma-Fix of Dayton, Inc., No. 

3:04–CV–418, 2006 WL 212076 (S.D. 

Ohio Jan. 27, 2006) and City of 

Ashtabula v. Norfolk S. Corp., 633 F. 

Supp. 2d 519, 528–29 (N.D. Ohio 2009) 

(holding that the ANR is an enforceable 

emissions limitation within the meaning 

of the CAA); Sampson, et al. v. SunCoke 

Energy et al., 1:17–cv–00658–MRB (S.D. 

Ohio) (citizen suit alleging violations of 

the ANR at a coke production facility 

and which was pending at the time of 

EPA’s removal of the ANR). EPA also 

received public comments opposing the 

proposed rulemaking that argued that 

the ANR was an ‘‘important regulatory 

tool in achieving and maintaining the 

NAAQS,’’ and that its removal from the 

SIP ‘‘ignored the role of citizen suits in 

CAA enforcement.’’ Slip op. at 7. See 

also 85 FR 73636, 73637–73639 

(November 19, 2020). 

Further, the state of Ohio 

acknowledged relying on the ANR as 

recently as July 2021, when it brought 

a lawsuit against an iron and steel 

manufacturing facility for violating the 

ANR based on lead emissions exceeding 

the NAAQS. See State of Ohio v. 

Republic Steel, Case No. 2021VC00949 

(Stark County, Ohio July 2, 2021). See 

also footnote 2, supra. While this 

information came to light after EPA had 

taken final action to remove the ANR 

from Ohio’s SIP, and thus EPA could 

not have considered it at the time of its 

original action to remove the ANR, it 

supports EPA’s current analysis that the 

Ohio ANR is indeed used to enforce the 

NAAQS. 

The types of air pollution identified 

in the ANR—smoke, ashes, dust, dirt, 

grime, acids, fumes, gases, and vapors— 

could have a nexus to a number of 

NAAQS, including particulate matter, 

sulfur dioxide, and lead.3 The CAA 

requires that SIPs provide for the 

implementation, maintenance, and 

enforcement of the NAAQS. See 42 

U.S.C. 7410(a)(1). In the original action 

approving the ANR into the SIP, the 

ANR had been adopted by the State after 

public notice and hearing, and EPA had 

determined that it met the specific 

criteria in section 110(a)(2). Under 

Union Electric, supra, EPA was required 

to approve the ANR into the SIP—even 

if such approval resulted in emission 

standards that were stricter than those 

required to attain or maintain the 

NAAQS. 

The examples cited by the Sierra 

Club, other commenters, and the Sixth 

Circuit highlight the importance of the 

ANR as a regulatory tool for achieving, 

maintaining, and enforcing the NAAQS 

consistent with section 110(a)(1) of the 

CAA. EPA’s removal of the ANR from 

the Ohio SIP failed to consider the 

evidence in the record of the ANR’s role 

in citizen suit enforcement of the 

NAAQS under the CAA. EPA is 

proposing to conclude that EPA’s prior 

determination that inclusion of the ANR 

in the Ohio SIP was ‘‘erroneous’’ was 

flawed, as the evidence in the record 

before the Agency at the time that 

decision was made indicated that the 

ANR has a clear nexus to the 

enforcement of the NAAQS under 

section 110(a)(1) of the CAA. As such, 

EPA is proposing to use its error 

correction authority under CAA section 

110(k)(6) to reverse its November 2020 

rule and reinstate the ANR into the Ohio 

SIP. 

B. Section 193 ‘‘Anti-Backsliding’’ 

Analysis 

On remand, EPA has also evaluated 

whether it should have performed an 

‘‘anti-backsliding’’ analysis under 

section 193 of the CAA, 42 U.S.C. 7515, 

as part of the Agency’s November 2020 

action removing the ANR from the Ohio 

SIP. Upon further review, EPA is 

proposing to determine that its original 

action was deficient because it should 

have performed an anti-backsliding 

analysis in taking this final action. 

Section 193 provides that, for SIP 

control requirements in effect before 

November 15, 1990, any ‘‘modification’’ 

thereof must ‘‘insure[ ] equivalent or 

greater emissions reductions’’ of the air 

pollutant for which the area is in 

nonattainment. 42 U.S.C. 7515. As a 

general matter, this ‘‘anti-backsliding’’ 

analysis is required when modifying SIP 

control requirements, whether through 

section 110(k)(6) or otherwise, if the 

modification impacts pre-1990 control 

requirements in a nonattainment area. 

Because the ANR was a pre-1990 SIP 

control requirement that was in effect in 

Ohio’s nonattainment areas, EPA is 

proposing to determine that it was 

required to conduct an anti-backsliding 

analysis pursuant to section 193 when 

it removed the ANR in November 2020. 

Because EPA failed to conduct the 

required analysis under section 193, the 

Agency’s November 2020 removal of the 

ANR was deficient. 

Through this action, EPA is proposing 

to determine its November 2020 

removal of the ANR was in error and 

reinstate the ANR into the Ohio SIP. 

Section 193 does not apply to this 

proposed action because the antibacksliding analysis is required only 

when there is modification of a ‘‘control 

requirement in effect . . . before 

November 15, 1990, in any area which 

is a nonattainment area for any air 

pollutant.’’ See section 193 of the CAA, 

42 U.S.C. 7515. EPA is not proposing to 

modify a control requirement currently 

in effect in Ohio’s SIP. Rather, EPA is 

proposing to determine its prior removal 

of the ANR was in error, and to correct 

that error by reinstating the ANR into 

Ohio’s SIP. 

C. EPA’s Use of Section 110(k)(6) 

On remand, EPA has also evaluated 

whether the section 110(k)(6) errorcorrection mechanism was an 

appropriate vehicle for removing the 

ANR from Ohio’s SIP. As discussed 

throughout this proposal, EPA has 

reevaluated its removal of the ANR and 

is proposing to determine that its 

November 2020 final action was in 

error, and to correct that action by 

reinstating the ANR as part of the Ohio 

SIP. Notwithstanding the deficiencies in 

EPA’s November 2020 action, as a 

general legal matter, section 110(k)(6) 

can be an appropriate mechanism to 

revise a prior action on a SIP revision 

that was in error. As the Sixth Circuit 

noted in its order remanding this matter 

back to EPA, ‘‘[i]f EPA determines that 

its prior approval of a SIP was in error, 

the EPA can revise the plan using the 

Clean Air Act’s error-correction 

provision, 42 U.S.C. 7410(k)(6).’’ Slip 

op. at 1. ‘‘The claimed error can be used 

to revise a SIP only if the error existed 

at the time of the SIP’s prior approval.’’ 

Slip op. at 4, citing Ala. Env’t Council 

v. EPA, 711 F.3d 1277, 1287–88 (11th 

Cir. 2013); Texas v. EPA, 726 F.3d 180, 

204 (D.C. Cir. 2013). While section 

110(k)(6) can be an appropriate vehicle 

to revise a prior action on a SIP 

provision, EPA’s November 2020 use of 

section 110(k)(6) was deficient on a 

number of bases. 

EPA’s November 2020 removal of the 

ANR from the Ohio SIP was based on 

a determination that the ANR’s 

inclusion in the Ohio SIP was erroneous 

because it had no nexus to the 

implementation, maintenance, or 

enforcement of the NAAQS, and that 

Ohio did not rely on the ANR to meet 

these statutorily prescribed 

requirements. See 85 FR 73636–73638. 

As discussed above, EPA failed to 

consider the ANR’s role as a NAAQS 

enforcement tool under the CAA. 

Consequently, we are now proposing to 

determine that the ANR has a clear 

nexus to the enforcement of the NAAQS 

under section 110(a)(1) of the CAA, and 


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13308 Federal Register / Vol. 89, No. 36 / Thursday, February 22, 2024 / Proposed Rules 

that EPA’s prior determination that 

inclusion of the ANR in the Ohio SIP 

was ‘‘erroneous’’ was flawed. As 

discussed above, EPA failed to consider 

public comments demonstrating the 

ANR’s use as a NAAQS enforcement 

tool. Further, EPA failed to conduct an 

‘‘anti-backsliding’’ analysis pursuant to 

section 193 of the CAA. As such, EPA 

is proposing that its November 2020 

removal of the ANR using section 

110(k)(6) was improper. 

Because the ANR’s inclusion in the 

Ohio SIP was not erroneous, there was 

no ‘‘error’’ to correct. In other words, 

EPA erred in using section 110(k)(6) to 

remove the ANR because the ANR was 

appropriate for inclusion in the Ohio 

SIP at the time the SIP was originally 

approved. See Texas v. EPA, 726 F,3d 

180, 204 (D.C. Cir. 2013) (Kavanaugh, J. 

dissenting). EPA is now proposing to 

correct its erroneous November 2020 

action removing the ANR from the Ohio 

SIP, and to therefore reinstate the ANR 

into the Ohio SIP. 

III. What action is EPA taking? 

EPA is proposing to determine that its 

prior action removing OAC 3745–15–07 

from the Ohio SIP was deficient. 

Consequently, EPA is proposing to 

reverse its removal and reinstate OAC 

3745–15–07 into the Ohio SIP, 

recodifying this reinstatement by 

revising the appropriate paragraph 

under 40 CFR part 52, subpart KK, 

52.1870 (Identification of Plan). 

IV. Incorporation by Reference 

In this action, EPA is proposing to 

include final EPA rule regulatory text 

that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

Ohio rule OAC 3745–15–07, as effective 

on May 17, 1982, discussed in section 

II of this preamble. EPA has made, and 

will continue to make, these documents 

generally available through 

www.regulations.gov and at the EPA 

Region 5 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993), and 14094 (88 FR 

21879, April 11, 2023); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not subject to Executive Order 

13045 (62 FR 19885, April 23, 1997) 

because it approves a state program; 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA. 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ EPA further 

defines the term fair treatment to mean 

that ‘‘no group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

EPA did not perform an EJ analysis 

and did not consider EJ in this action. 

Consideration of EJ is not required as 

part of this action, and there is no 

information in the record inconsistent 

with the stated goal of E.O. 12898 of 

achieving environmental justice for 

people of color, low-income 

populations, and Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: February 14, 2024. 

Debra Shore, 

Regional Administrator, Region 5. 

[FR Doc. 2024–03555 Filed 2–21–24; 8:45 am] 

BILLING CODE 6560–50–P 


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